Employer vaccine mandates for COVID-19 – a legal and ethical discussion

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A recent article about employer COVID-19 vaccine mandates, by Professors Dorit Rubinstein Reiss and Arthur Caplan, examined its legal and ethical issues. Their thought-provoking analysis should be part of our discussions about the new vaccines.

I think that employer vaccine mandates, especially during this COVID-19 pandemic, are something that should be considered everywhere. However, employer mandates are very controversial, with ten states already considering prohibitions to them.

I am going to excerpt some of their points in the article while adding my own thoughts on the topic. I think this is worthy of a wide discussion.

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COVID-19 vaccine trials – FDA rejects ICAN petition to stop the trials

COVID-19 vaccine trials

This article about the Informed Consent Action Network’s petition to halt COVID-19 vaccine trials was written by Viridiana Ordonez, a J.D. candidate at the University of California, Hastings College of Law

This article summarizes the FDA’s response to Del Bigtree’s ICAN’s (petitioner) request regarding the Phase III trials for the COVID-19 vaccine.  The summary is divided into three parts:

  1. Petitioner’s Request;
  2. FDA’s description of vaccine process; and
  3. FDA’s response to the petition.

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COVID-19 vaccines employer mandates – legal basics for and against

COVID-19 vaccines employer mandates

This article about COVID-19 vaccines employer mandates was written by Dorit Rubinstein Reiss, Professor of Law at the University of California Hastings College of the Law (San Francisco, CA), who is a frequent contributor to this and many other blogs, providing in-depth, and intellectually stimulating, articles about vaccines, medical issues, social policy, and the law.

Professor Reiss writes extensively in law journals about the social and legal policies of vaccination. Additionally, Reiss is also a member of the Parent Advisory Board of Voices for Vaccines, a parent-led organization that supports and advocates for on-time vaccination and the reduction of vaccine-preventable disease. She is also a member of the Vaccines Working Group on Ethics and Policy.

The goal of this post is to give a short overview of the law surrounding employer mandates for COVID-19 vaccines. Two caveats. First, this post is not taking a position on whether a mandate is a good or bad idea for a specific employer: it is just setting out the law. Second, this post is focused on employers choosing to require vaccines, not states.

As preliminary comments, I want to remind readers that we do not actually know whether COVID-19 vaccines will dramatically reduce transmission. We know they are very effective at protecting recipients (and very safe), and we have reasonable grounds to expect they will reduce transmission somewhat, but we do not yet know to what extent. 

A workplace or employer mandate is, in part, justified by protecting the workforce – employers are expected, sometimes required, to minimize risks to their workers, and may be liable for work-related harms through workers’ compensation, but mandates are often justified by the protection of others – in this case, co-workers and customers – and if the vaccines do not reduce transmission, there is less justification.

We also do not yet know how long the COVID-19 vaccines’ immunity will last, and whether there are very rare side effects that have not yet been discovered. So this discussion has some uncertainty built-in. That uncertainty, however, would not directly change much of the legal framework described below.

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Massachusetts influenza vaccine mandate withdrawn – an analysis

Massachusetts influenza vaccine mandate

This article about why Massachusetts withdrew its influenza vaccine mandate for children was written by Dorit Rubinstein Reiss, Professor of Law at the University of California Hastings College of the Law (San Francisco, CA), who is a frequent contributor to this and many other blogs, providing in-depth, and intellectually stimulating, articles about vaccines, medical issues, social policy, and the law.

Professor Reiss writes extensively in law journals about the social and legal policies of vaccination. Additionally, Reiss is also a member of the Parent Advisory Board of Voices for Vaccines, a parent-led organization that supports and advocates for on-time vaccination and the reduction of vaccine-preventable disease. She is also a member of the Vaccines Working Group on Ethics and Policy.

On August 19, 2020, the Massachusetts Department of Public Health announced that the influenza vaccine will be required from all children “6 months of age or older who are attending Massachusetts child care, pre-school, kindergarten, K-12, and colleges and universities.”

The requirement was only for children attending in-person (not online) education and had a deadline of December 31, 2020. A lawsuit was filed against the mandate, apparently, according to the anti-vaccine organization Informed Consent Action Network (ICAN), funded by that organization, and brought by the law firm they habitually employ, Siri & Glimstad LLP (In 2019, ICAN paid the law firm $1,263,432 for “legal services” out of over $3.4 million the organization took in as income, according to their 990 filings).

After the Massachusetts Department of Public Health pushed off that deadline to February, they decided to withdraw the influenza vaccine mandate on January 15, 2021.

The Public Health Department explains in a letter:

Preliminary data show that this has been a mild flu season to date, presumably as people have received their seasonal flu vaccine and have been adhering to mask-wearing and social distancing due to COVID-19. Given the intensive Commonwealth-wide efforts regarding COVID-19 vaccination, DPH wants to alleviate the burden to obtain flu vaccination and focus on continuing our COVID -19 vaccination efforts. DPH continues to strongly recommend that everyone age six months and older receive their seasonal flu vaccine each year.

ICAN is celebrating this as a victory of their lawsuit. We do not know which other considerations went into the decision, and the lawsuit may have had an effect, if only by adding to the already full plate of the department during a pandemic.

But the reality is that given the jurisprudence on vaccine mandates, and given the deference most courts show public health authorities during a pandemic, if there were good grounds to insist on the mandate, the department would likely have held its grounds. A number of other factors likely fed into the decision, including, as pointed out, a relatively mild flu season (in part thanks to public health measures against COVID-19), Massachusetts stated desire to bring children back to in-person education, which may have led the department to seek to remove barriers, and the need to focus on the COVID-19 vaccine effort.

Plus, it is mid-January. The benefit of being distracted by a fight over an influenza mandate this late is probably less than the harm to other important efforts.

COVID-19 vaccine liability – what are the legal facts and limits

COVID-19 vaccine liability

This article about COVID-19 vaccine liability was written by Dorit Rubinstein Reiss, Professor of Law at the University of California Hastings College of the Law (San Francisco, CA), who is a frequent contributor to this and many other blogs, providing in-depth, and intellectually stimulating, articles about vaccines, medical issues, social policy, and the law.

Professor Reiss writes extensively in law journals about the social and legal policies of vaccination. Additionally, Reiss is also a member of the Parent Advisory Board of Voices for Vaccines, a parent-led organization that supports and advocates for on-time vaccination and the reduction of vaccine-preventable disease. She is also a member of the Vaccines Working Group on Ethics and Policy.

I have been getting many questions about vaccine manufacturers and liability. Here is a short answer. There are limits to the ability to sue manufacturers for injuries from routine vaccines given to children or pregnant women. They are not absolute and are accompanied by a compensation program that is easier to win in than the regular courts.

There are very strong limits on the ability to sue manufacturers of emergency products – not just vaccines. Those are accompanied by a very hard to use compensation program, that provides limited compensation.

Ideally, I would like to see COVID-19 vaccine liability moved to the routine compensation program.

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COVID-19 religious gatherings – Supreme Court prevents NY from enforcing limits

COVID-19 religious gatherings

This article, about a recent Supreme Court decision that prevents New York from enforcing limits on religious gatherings during the COVID-19 pandemic, was written by Dorit Rubinstein Reiss, Professor of Law at the University of California Hastings College of the Law (San Francisco, CA), who is a frequent contributor to this and many other blogs, providing in-depth, and intellectually stimulating, articles about vaccines, medical issues, social policy, and the law.

Professor Reiss writes extensively in law journals about the social and legal policies of vaccination. Additionally, Reiss is also a member of the Parent Advisory Board of Voices for Vaccines, a parent-led organization that supports and advocates for on-time vaccination and the reduction of vaccine-preventable disease. She is also a member of the Vaccines Working Group on Ethics and Policy.

On November 24, 2020, the Supreme Court ordered temporary relief preventing Governor Cuomo and New York officials from enforcing limits on gathering imposed on religious houses during the COVID-19 pandemic (Roman Catholic Diocese of Brooklyn, New York v. Andrew M. Cuomo). The decision, as the dissents pointed out, raises concerns about the ability of states to limit religious activities in the interest of protecting believers – and the broader public – from diseases. But the per curiam opinion makes relatively limited changes to our First Amendment jurisprudence, though it may signal that the court will, in the future, change it, and does not at present change the legal framework governing vaccine mandates. Continue reading “COVID-19 religious gatherings – Supreme Court prevents NY from enforcing limits”

University of California flu vaccine order – anti-vaxxers court challenge

University of California flu vaccine

This article regarding the University of California flu vaccine executive order, and a subsequent anti-vaccine activist court challenge, was written by Dorit Rubinstein Reiss, Professor of Law at the University of California Hastings College of the Law (San Francisco, CA), who is a frequent contributor to this and many other blogs, providing in-depth, and intellectually stimulating, articles about vaccines, medical issues, social policy, and the law.

Professor Reiss writes extensively in law journals about the social and legal policies of vaccination. Additionally, Reiss is also a member of the Parent Advisory Board of Voices for Vaccines, a parent-led organization that supports and advocates for on-time vaccination and the reduction of vaccine-preventable disease.

An anti-vaccine organization brought a lawsuit against the University of California’s Executive Order “strongly recommending” flu vaccines for most students, faculty, and staff and mandating it for a specific sub-set. With one possible exception that I am less familiar with, but that the University responded strongly to, the complaint’s claims are unfounded and should be dismissed. Continue reading “University of California flu vaccine order – anti-vaxxers court challenge”

Governor Newsom’s COVID-19 emergency powers limited by California court

This article about a California court decision regarding Gov. Gavin Newsom’s COVID-19 emergency powers was written by Dorit Rubinstein Reiss, Professor of Law at the University of California Hastings College of the Law (San Francisco, CA), who is a frequent contributor to this and many other blogs, providing in-depth, and intellectually stimulating, articles about vaccines, medical issues, social policy, and the law.

Professor Reiss writes extensively in law journals about the social and legal policies of vaccination. Additionally, Reiss is also a member of the Parent Advisory Board of Voices for Vaccines, a parent-led organization that supports and advocates for on-time vaccination and the reduction of vaccine-preventable disease. She is also a member of the Vaccines Working Group on Ethics and Policy.

On November 2, 2020, Judge Sarah E. Heckman ruled that the Governor’s power under the California Emergency Services Act (CESA) only included the power to suspend statutes, not to change them via executive order. While the decision clearly limits the Governor’s power to act in an emergency and raises questions about the validity of some of the Governor’s COVID-19 orders, it does not affect his order about the election that was the basis for the lawsuit, nor would it, for example, overturn California’s face covering mandate and other restrictions not issued under CESA.

It is appropriate for the judiciary to address the constitutional limits on actions by the other branches, and it’s not a bad thing to limit the powers of the governor, even in an emergency. But the narrow construction of the Governor’s power to act in an emergency under the constitution is concerning. Continue reading “Governor Newsom’s COVID-19 emergency powers limited by California court”

Connecticut court supports masks in schools – rejects emergency injunction

connecticut masks

This article about a Connecticut court decision regarding masks in schools was written by Dorit Rubinstein Reiss, Professor of Law at the University of California Hastings College of the Law (San Francisco, CA), who is a frequent contributor to this and many other blogs, providing in-depth, and intellectually stimulating, articles about vaccines, medical issues, social policy, and the law.

Professor Reiss writes extensively in law journals about the social and legal policies of vaccination. Additionally, Reiss is also a member of the Parent Advisory Board of Voices for Vaccines, a parent-led organization that supports and advocates for on-time vaccination and the reduction of vaccine-preventable disease. She is also a member of the Vaccines Working Group on Ethics and Policy.

On November 2, 2020, Judge J. Moukawsher of the superior court in Hartford District, Connecticut denied the request that children do not wear masks while attending school. The Connecticut Freedom Alliance, LLC sought an emergency injunction stopping Connecticut’s Department of Education’s order that Connecticut school children wear masks. Continue reading “Connecticut court supports masks in schools – rejects emergency injunction”

Dorit Rubinstein Reiss – an index of her vaccine articles on this website

Dorit Rubinstein Reiss

Dorit Rubinstein Reiss – Professor of Law at the University of California Hastings College of the Law (San Francisco, CA) – is a frequent contributor to this and many other blogs, providing in-depth, and intellectually stimulating, articles about vaccines (generally, but sometimes moving to other areas of medicine), social policy and the law. Her articles usually unwind the complexities of legal issues with vaccinations and legal policies, such as mandatory vaccination and exemptions, with facts and citations.

Professor Reiss writes extensively in law journals about the social and legal policies of vaccination–she really is a well-published expert in this area of vaccine policy, and doesn’t stand on the pulpit with a veneer of Argument from Authority, but is actually an authority. Additionally, Reiss is also a member of the Parent Advisory Board of Voices for Vaccines, a parent-led organization that supports and advocates for on-time vaccination and the reduction of vaccine-preventable disease.

She was also one of the many contributors to the book, “Pseudoscience – The Conspiracy Against Science.”

Many bloggers and commenters on vaccine issues will link to one or more of her articles here as a primary source to counter an anti-vaccine claim. The purpose of this post is to give you a quick reference to find the right article to answer a question you might have.

Below is a list of articles that Dorit Rubinstein Reiss has written for this blog, organized into some arbitrary and somewhat broad categories for easy reference. This article will be updated as new articles from Professor Reiss are published here. We also may update and add categories as necessary.

Because she has written over 160 articles for this website, there is a vast amount of information about vaccines and the law, I have created a search engine that allows you to quickly find a specific article written by Professor Reiss on this website by using any keywords that you want. This should help speed up your search for just the right article that she has written.


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